WILSON v. AKE

The opinion of the court was delivered by: JAMES S. MOODY, JR., District Judge

ORDER

THIS CAUSE comes before the Court upon United States Attorney
General John Ashcroft's Motion to Dismiss (Dkt. # 31), Memorandum
in Support of United States Attorney General Ashcroft's Motion to
Dismiss (Dkt. # 39), and Plaintiffs' Memorandum of Law in
Opposition to the United States Attorney General's Motion to
Dismiss (Dkt. # 48). The Court, having considered the Motion and
Memoranda, and being otherwise fully advised, finds that the
Motion should be granted.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Nancy Wilson and Paula Schoenwether allege that they
are a lesbian couple who reside together in the Middle District
of Florida. According to the Complaint, Plaintiffs were legally
married in the State of Massachusetts and possess a valid
marriage license from that State. Plaintiffs allege that they
personally presented their Massachusetts marriage license to a
Deputy Clerk at the Clerk of the Circuit Court's Office in
Hillsborough County, Florida, asking for "acceptance of the valid and legal
Massachusetts marriage license." (Complaint, ¶ 12). Plaintiffs
allege that "[t]heir demand was refused by Defendant Ake, whose
Deputy Clerk stated that according to Federal and Florida law,
the Clerk is not allowed to recognize, for marriage purposes, the
Massachusetts marriage license, because Federal and Florida law
prohibit such recognition." (Complaint, ¶ 12).

Plaintiffs have filed a Complaint for Declaratory Judgment
asking this Court to declare the Federal Defense of Marriage Act
("DOMA"), 1 U.S.C. § 7; 28 U.S.C. § 1738C,*fn1 and Florida
Statutes § 741.212,*fn2 unconstitutional and to enjoin their
enforcement. Plaintiffs have sued, in their official capacities, Richard L. Ake, Clerk of
the Circuit Court in Hillsborough County, Florida, and United
States Attorney General John Ashcroft.*fn3

Plaintiffs allege that the two statutes violate the Full Faith
and Credit Clause, the Due Process clause of the Fourteenth
Amendment, the Equal Protection Clause of the Fourteenth
Amendment, the Privileges and Immunities Clause, and the Commerce
Clause of the United States Constitution.

Plaintiffs assert that Florida is required to recognize
Plaintiffs' valid Massachusetts marriage license because DOMA
exceeds Congress' power under the Full Faith and Credit Clause.
Plaintiffs also argue that twelve United States Supreme Court
cases (which Plaintiffs label "The Dynamite Dozen"), beginning
with Brown v. Board of Education, 347 U.S. 483 (1954), and
ending with Lawrence v. Texas, 539 U.S. 558 (2003), demonstrate
a recent trend by the United States Supreme Court to expand "the fundamental
liberty of personal autonomy in connection with one's intimate
affairs and family relations." (Plaintiffs' Memorandum of Law in
Opposition (Dkt. # 48), p. 11). Plaintiffs urge this Court to
expand on "The Dynamite Dozen" by finding that the right to enter
into a same-sex marriage is protected by the Constitution.

Defendant Ashcroft has moved to dismiss Plaintiffs' Complaint
pursuant to Rule 12(b)(6), Fed.R.Civ.P., on the grounds that the
Complaint fails to state a claim upon which relief can be
granted.*fn4 The United States, in a well-written
Memorandum, argues that Plaintiffs' Complaint is barred as a
matter of law because DOMA does not infringe on any of
Plaintiffs' fundamental rights and is a legitimate exercise of
the power granted to Congress by the Full Faith and Credit
Clause.*fn5

MOTION TO DISMISS STANDARD

A complaint should not be dismissed pursuant to Rule 12(b)(6)
"unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim." Bracewell v. Nicholson
Air Services, Inc., 680 F.2d 103, 104 (11th Cir. 1982); see
also Rickman v. Precisionaire, Inc., 902 F.Supp. 232, 233
(M.D. Fla. 1995) (citing Conley v. Gibson, 355 U.S. 41, 47
(1957)). For Rule 12(b)6 purposes, the court considers as part of
the complaint any written instrument filed with it as an exhibit.
See Rule 10(c) Fed.R.Civ.P. ("A copy of any written instrument which is an exhibit to a pleading is a
part thereof for all purposes."). In ruling on a motion to
dismiss, the court must accept plaintiff's well-pleaded facts as
true, and construe the complaint in the light most favorable to
the plaintiff. See Quality Foods de Centro Am., S.A. v. Latin
Am. Agribusiness Devel. Corp., 711 F.2d 989, 994-95 (11th Cir.
1983); Rickman, 902 F.Supp. at 233 (citing Scheuer v. Rhodes,
416 U.S. 232 (1974)). Regardless of the alleged facts, however, a
court may dismiss a complaint on a dispositive issue of law.
Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas District,
992 F.2d 1171, 1174 (11th Cir. 1993); Hunt v. American Bank & Trust
Co., 783 F.2d 1011, 1013 (11th Cir. 1986).

FULL FAITH AND CREDIT CLAUSE

Plaintiffs' Complaint asserts that DOMA conflicts with the
Constitution's Full Faith and Credit Clause. Article IV, Section
I of the Constitution provides:

Full Faith and Credit shall be given in each State to
the public Acts, Records, and Judicial Proceedings of
every other State; And the Congress may by general
Laws prescribe the Manner in which such Acts, Records
and Proceedings shall be proved, and the Effect
thereof.

Plaintiffs argue that "[o]nce Massachusetts sanctioned legal
same-gender marriage, all other states should be constitutionally
required to uphold the validity of the marriage." (Complaint, ¶
23). Plaintiffs believe that the differences in individuals'
rights to enter into same-sex marriages among the States, such as
Florida and Massachusetts, is exactly what the Full Faith and
Credit Clause prohibits. They also assert that DOMA is beyond the
scope of Congress' legislative power under the Full Faith and Credit
Clause because Congress may only regulate what effect a law may
have, it may not dictate that the law has no effect at all.

This Court disagrees with Plaintiff's interpretation of the
Full Faith and Credit Clause. Congress' actions in adopting DOMA
are exactly what the Framers envisioned when they created the
Full Faith and Credit Clause. DOMA is an example of Congress
exercising its powers under the Full Faith and Credit Clause to
determine the effect that "any public act, record, or judicial
proceeding of any other State, territory, possession, or tribe
respecting a relationship between persons of the same sex that is
treated as a marriage" has on the other States.
28 U.S.C. § 1738C. Congress' actions are an appropriate exercise of its power
to regulate conflicts between the laws of two different States,
in this case, conflicts over the validity of same-sex marriages.

Adopting Plaintiffs' rigid and literal interpretation of the
Full Faith and Credit would create a license for a single State
to create national policy. See Nevada v. Hall, 440 U.S. 410,
423-24 (1979) ("Full Faith and Credit does not . . . enable one
state to legislate for the other or to project its laws across
state lines so as to preclude the other from prescribing for
itself the legal consequences of acts within it.") (quoting
Pacific Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493,
505-06 (1939)); Williams v. North Carolina, 317 U.S. 287, 296
(1942) ("Nor is there any authority which lends support to the
view that the full faith and credit clause compels the courts of
one state to subordinate the local policy of that state, as
respects its domiciliaries, to the statutes of any other
state."). The Supreme Court has clearly established that "the
Full Faith and Credit Clause does not require a State to apply
another State's law in violation of its own legitimate public policy."
Hall, 440 U.S. at 422 (citing Pacific Ins. Co,
306 U.S. at 493). Florida is not required to recognize or apply
Massachusetts' same-sex marriage law because it clearly conflicts
with Florida's legitimate public policy of opposing same-sex
marriage. See infra pp. 9-18; Fla. Stat. § 741.212.*fn6

BAKER v. NELSON

The United States argues that this Court is bound by the United
States Supreme Court's decision in Baker v. Nelson,
291 Minn. 310, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810
(1972). In Baker v. Nelson, two adult males' application for a
marriage license was denied by the Clerk of the Hennepin County
District Court because the petitioners were of the same sex. The
plaintiffs, following the quashing of a writ of mandamus
directing the clerk to issue a marriage license, appealed to the
Minnesota Supreme Court. Id. at 311, 191 N.W.2d at 185.
Plaintiffs argued that Minnesota Statute § 517.08, which did not
authorize marriage between persons of the same sex, violated the
First, Eighth, Ninth and Fourteenth Amendments of the United
States Constitution. Id. at 312, 191 N.W.2d at 186. The
Minnesota Supreme Court rejected plaintiffs' assertion that "the
right to marry without regard to the sex of the parties is a
fundamental right of all persons" and held that § 517.08 did not
violate the Due Process Clause or Equal Protection Clause. Id.
at 312-15, 191 N.W.2d at 186-87. The plaintiffs then appealed the Minnesota Supreme Court's
ruling to the United States Supreme Court pursuant to
28 U.S.C. 1257(2).*fn7 Under 28 U.S.C. 1257(2), the Supreme Court had
no discretion to refuse to adjudicate the case on its merits.
Hicks v. Miranda, 422 U.S. 332, 344 (1975). The Supreme Court
dismissed the appeal "for want of a substantial federal
question." Baker, 409 U.S. at 810.

Plaintiffs assert that Baker v. Nelson is not binding upon
this Court because the Supreme Court did not issue a written
opinion and because the case was decided thirty-two (32) years
ago, before the "current civil rights revolution." (Plaintiffs'
Memorandum of Law in Opposition (Dkt. #48), pp. 9-10). This Court
disagrees. A dismissal for lack of a substantial federal question
constitutes an adjudication on the merits that is binding on
lower federal courts. See Hicks, 422 U.S. at 344. As Justice
White noted, the Court was "not obligated to grant the case
plenary consideration . . . but [the Court was] required to deal
with its merits. Id; see also Ohio ex rel. Eaton v.
Price, 360 U.S. 246, 247 (1959) ("(v)otes to affirm summarily,
and to dismiss for want of a substantial federal question, it
hardly needs comment, are votes on the merits of a case . . ."). Although Baker v. Nelson is over thirty (30) years old, the
decision addressed the same issues presented in this action and
this Court is bound to follow the Supreme Court's decision. See
Hicks, 422 U.S. at 344-45 ("lower courts are bound by summary
decision by this Court `until such time as the Court informs
(them) that (they) are not.") (quoting Doe v. Hodgson,
478 F.2d 537, 539 (2d Cir. 1973)); see also McConnell v. Nooner,
547 F.2d 54, 55-56 (8th Cir. 1976); Adams v. Howerton,
486 F.Supp. 1119, 1124 (C.D.Cal. 1980), aff'd 673 F.2d 1036, 1039
n. 2 (9th Cir. 1982).

The Supreme Court's holding in Lawrence does not alter the
dispositive effect of Baker. See Agostini v. Felton,
521 U.S. 203, 207 (1997) ("The Court neither acknowledges nor holds
that other courts should ever conclude that its more recent cases
have, by implication, overruled an earlier precedent.");
Rodriguez de Quijas v. Shearson/American Express, Inc.,
490 U.S. 477, 484 (1989) ("If a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow
the case which directly controls, leaving to this Court the
prerogative of overruling its own decision.). The Supreme Court
has not explicitly or implicitly overturned its holding in
Baker or provided the lower courts, including this Court, with
any reason to believe that the holding is invalid today.*fn8
Accordingly, Baker v. Nelson is binding precedent upon this
Court and Plaintiffs' case against Attorney General Ashcroft must
be dismissed. DUE PROCESS

Recent Eleventh Circuit precedent also constrain this Court to
rule contrary to Plaintiffs' position. Plaintiffs argue that
their right to marry someone of the same sex is a fundamental
right that is guaranteed by the Fourteenth Amendment's Due
Process Clause.*fn9 If Plaintiffs' have a fundamental right
to enter into a same-sex marriage, then this Court must apply a
"`strict scrutiny' analysis that forbids government infringement
on a fundamental liberty interest `unless the infringement is
narrowly tailored to serve a compelling state interest.'" In re
Kandu, 315 B.R. 123, 138 (W.D.Wash. 2004) (quoting Washington
v. Glucksberg, 521 U.S. 702, 721 (1997)). If the right to marry
someone of the same sex is not a fundamental right, then the
Court will apply the more liberal rational basis analysis in
determining whether DOMA is constitutional. Glucksberg,
521 U.S. at 728.

The Supreme Court has defined fundamental rights as those
liberties that are "implicit in the concept of ordered liberty,
such that neither liberty nor justice would exist if they were
sacrificed." Glucksberg, 521 U.S. at 721 (quoting Palko v.
Connecticut, 302 U.S. 319, 325-26 (1937)). The Court observed
that the Due Process clause "specially protects those fundamental
rights and liberties which are, objectively, `deeply rooted in
this Nation's history and tradition.'" Glucksberg, 720-21
(quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977)
(plurality opinion)). Although the Supreme Court has held that marriage is a
fundamental right, Glucksberg, 521 U.S. at 720, no federal
court has recognized that this right includes the right to marry
a person of the same sex. See Kandu, 315 B.R. at 139;
Standhardt v. Superior Court of Arizona, 206 Ariz. 276, 281,
77 P.3d 451, 456 (2003). Plaintiffs urge this Court to interpret the
Supreme Court's decision in Lawrence v. Texas as establishing a
fundamental right to private sexual intimacy. Plaintiffs argue
that this Court should expand the fundamental right recognized in
Lawrence to include same-sex marriages.

In Lawrence, the Supreme Court struck down a Texas statute
that criminalized private sexual conduct between consenting
adults of the same sex. 539 U.S. at 578-79. The Court found that
the statute could not stand under rational review because it did
not further a legitimate state interest that justified the
intrusion into the personal lives of homosexuals. Id.

But the Supreme Court's decision in Lawrence cannot be
interpreted as creating a fundamental right to same-sex marriage.
First, the Eleventh Circuit disagrees with Plaintiffs' assertion
that Lawrence created a fundamental right in private sexual
intimacy and this Court must follow the holdings of the Eleventh
Circuit. See Lofton v. Sec. of Dept. of Children and Family
Servs., 358 F.3d 804, 817 (11th Cir.), reh'g en banc
denied by, 377 F.3d 1275 (2004), and cert. denied,
543 U.S. ___ (2005) ("We conclude that it is a strained and
ultimately incorrect reading of Lawrence to interpret it to
announce a new fundamental right."); Williams v. Pryor,
378 F.3d 1232, 1238 (11th Cir. 2004); see also Standhardt,
206 Ariz. at 281-82, 77 P.3d at 456-57. The Court in Lawrence did
not find private sexual conduct between consenting adults to be a fundamental right. Lawrence,
539 U.S. at 586 (Scalia, J., dissenting) ("nowhere does the
Court's opinion declare that homosexual sodomy is a `fundamental
right' under the Due Process Clause; nor does it subject the
Texas law to the standard of review that would be appropriate
(strict scrutiny) if homosexual sodomy were a `fundamental
right.'"). Rather, the Court determined that the Texas statute
failed under the rational basis analysis. Lawrence,
539 U.S. at 578-79.

Second, the majority in Lawrence was explicitly clear that
its holding did not extend to the issue of same-sex marriage,
stating that the case "does not involve whether the government
must give formal recognition to any relationship that homosexual
persons seek to enter." Lawrence 539 U.S. at 578; see also
Standhardt, 206 Ariz. at 282, 77 P.3d at 457 ("If the Court did
not view such an intimate expression of the bond securing a
homosexual relationship to be a fundamental right, we must reject
any notion that the Court intended to confer such status on the
right to secure state-sanctioned recognition of such a union.").
It is disingenuous to argue that the Supreme Court's precise
language in Lawrence established a fundamental right to enter
into a same-sex marriage.

Moreover, this Court is not inclined to elevate the ability to
marry someone of the same sex to a fundamental right. Although
the Court recognizes the importance of a heterosexual or
homosexual individual's choice of a partner, not all important
decisions are protected fundamental rights. Glucksberg,
521 U.S. at 727-28. The Supreme Court has cautioned against the
dangers of establishing new fundamental rights: By extending constitutional protection to an asserted
right or liberty interest, we, to a great extent,
place the matter outside the arena of public debate
and legislative action. We must therefore exercise
the utmost care whenever we are asked to break new
ground in this field, lest the liberty protected by
the Due Process Clause be subtly transformed into the
policy preferences of the members of this Court.
Glucksberg, 521 U.S. at 720.

The Eleventh Circuit has also noted that once a right is
elevated to a fundamental right, it is "effectively removed from
the hands of the people and placed into the guardianship of
unelected judges. We are particularly mindful of this fact in the
delicate area of morals legislation." Williams,
378 F.3d at 1250 (internal citations omitted). "Of course, the Court may in
due course expand Lawrence's precedent . . . [b]ut for us
preemptively to take that step would exceed our mandate as a
lower court." Williams, 378 F.3d at 1238; see also
Lofton, 358 F.3d at 827 (the "legislature is the proper forum
for this debate, and we do not sit as a superlegislature `to
award by judicial decree what was not achievable by political
consensus.'") (quoting Thomasson v. Perry, 80 F.3d 915, 923
(4th Cir. 1996)).*fn10 Therefore, the Court finds that the
right to marry a person of the same sex is not a fundamental
right under the Constitution.

EQUAL PROTECTION Plaintiffs also argue that this Court should apply strict
scrutiny in determining the constitutionality of DOMA because it
violates the Equal Protection Clause of the Fourteenth
Amendment.*fn11 The Eleventh Circuit has held that
homosexuality is not a suspect class that would require
subjecting DOMA to strict scrutiny under the Equal Protection
Clause of the Fourteenth Amendment or the equal protection
component of the Fifth Amendment's Due Process Clause. See
Lofton, 358 F.3d at 818 (holding that homosexuality is not a
suspect class and noting that "all of our sister circuits that
have considered the question have declined to treat homosexuals
as a suspect class."); see also Kandu, 315 B.R. at 144
(Lawrence "did not hold that same-sex couples constitute a
suspect or semi-suspect class under an equal protection
analysis") Moreover, DOMA does not discriminate on the basis of
sex because it treats women and men equally. Kandu,
315 B.R. at 143 (". . . DOMA does not classify according to gender, and the
Debtor is not entitled to heightened scrutiny under this
theory."). Therefore this Court must apply rational basis review
to its equal protection analysis of the constitutionality of
DOMA.

RATIONAL BASIS REVIEW

As the Court noted above, because Plaintiffs do not have a
fundamental right to enter into a same-sex marriage and because
DOMA does not create a suspect classification, the
constitutionality of DOMA is reviewed under the rational basis
test. Under rational basis review, this Court must determine whether the challenged
legislation is rationally related to a legitimate state interest.
See Lofton, 358 F.3d at 818 (citing Heller v. Doe,
50 U.S. 307, 313-14 (1993)). "In areas of social and economic policy, a
statutory classification that neither proceeds along suspect
lines nor infringes fundamental constitutional rights must be
upheld against equal protection challenge if there is any
reasonably conceivable state of facts that could provide a
rational basis for the classification." FCC v. Beach
Communications, Inc., 580 U.S. 307, 313 (1993). Rational basis
review is "very deferential to the legislature, and does not
permit this Court to interject or substitute its own personal
views of DOMA or same-sex marriage." Kandu at 145. This
presumption of validity remains true "even if the law seems
unwise or works to the disadvantage of a particular group, or if
the rationale for it seems tenuous." Lofton, 358 F.3d at 818
(quoting Romer v. Evans, 517 U.S. 620, 632 (1996)).

The burden in on the Plaintiffs to negate "every conceivable
basis which might support [the legislation], whether or not the
basis has a foundation in the record." Id. at 818, (quoting
Heller 50 U.S. at 320-21). The United States has "no obligation
to produce evidence to sustain the rationality of a statutory
classification." Id. (quoting Heller, 50 U.S. at 320). "A
statutory classification fails rational-basis review only when it
`rests on grounds wholly irrelevant to the achievement of the
State's objective.'" Heller, 50 U.S. at 324 (quoting Holt
Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978)).

The United States asserts that DOMA is rationally related to
two legitimate governmental interests. First, the government
argues that DOMA fosters the development of relationships that are optimal for procreation, thereby
encouraging the "stable generational continuity of the United
States." (Memorandum in Support of Motion to Dismiss (Dkt. # 39),
pp. 15-16). DOMA allegedly furthers this interest by permitting
the states to deny recognition to same-sex marriages performed
elsewhere and by adopting the traditional definition of marriage
for purposes of federal statutes. Second, DOMA "encourage[s] the
creation of stable relationships that facilitate the rearing of
children by both of their biological parents." (Memorandum in
Support of Motion to Dismiss (Dkt. # 39), pp. 15-16). The
government argues that these stable relationships encourage the
creation of stable families that are well suited to nurturing and
raising children.

Plaintiffs offer little to rebut the government's argument that
DOMA is rationally related to the government's proffered
legitimate interests. Rather, Plaintiffs repeatedly urge the
Court to apply the more rigid strict scrutiny analysis.

Although this Court does not express an opinion on the validity
of the government's proffered legitimate interests, it is bound
by the Eleventh Circuit's holding that encouraging the raising of
children in homes consisting of a married mother and father is a
legitimate state interest. See Lofton, 358 F.3d at 819-20.
DOMA is rationally related to this interest. Moreover, Plaintiffs
have failed to satisfy their burden of establishing that DOMA
fails rational basis review. See Lofton, 358 F.3d at 818-19;
Kandu, 315 B.R. at 148.*fn12 Accordingly, the United
States' motion to dismiss is granted.*fn13

CONCLUSION

In short, Plaintiffs' argument is that, given their recent
"civil rights revolution," the United States Supreme Court is
likely to declare that same-sex marriage is a fundamental right
that is protected by the Constitution. Plaintiffs are asking this
Court to create such a fundamental right immediately, before the
Supreme Court revisits the issue of same-sex marriage. But that
is not this Court's role. This Court is bound to follow the
precedent established by the Eleventh Circuit Court of Appeals
and the United States Supreme Court. None of their precedent
acknowledge or establish a constitutional right to enter into a
samesex marriage. The legislatures of the individual states may
decide to permit same-sex marriage or the Supreme Court may
decide to overturn its precedent and strike down DOMA. But, until
then, this Court is constrained to hold DOMA and Florida Statutes
§ 741.212 constitutionally valid.

It is therefore ORDERED AND ADJUDGED that: 1. United States Attorney General John Ashcroft's Motion to
Dismiss (Dkt. # 31) is GRANTED.

2. Plaintiffs' claim against Defendant Ashcroft is dismissed
and the Clerk is directed to terminate him as a party.

DONE and ORDERED.

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